The
appellant in this matter applied for and obtained from Cullinan C.J.
in the Court a quo an order in the following terms:-

"1.
That a Rule Nisi do hereby issue calling upon Respondents to show
cause, if any why:-

First
Respondent shall not be directed to forthwith allow the students of
the University to have access forthwith to their halls
of residence.
Applicant's offices, laundry, the library and laboratories in order
that students may prepare for the examinations
at the end of the
academic year;

First
Respondent shall not be directed forthwith to allow the students of
the University to have possession of their personal
belongings:

Directing
Second Respondent and/or officers subordinate to desist forthwith
from expelling students from the Roma Campus of the
University or in
any way interfering

3

with the
students of the University in carrying out their normal duties and/or
functions as students of the University;

Declaring
the closure of the University null and void;

Declaring
the requirement of Senate and/or Council that the student Union
apologises to the Vice-chancellor, Senate and/or Council
null and
void;

Directing
First Respondent to treat the petition of the students as a matter
requiring urgent attention.

Directing
First Respondent to allow the students if they so wish, to write the
examination at the end of the academic year;

On the
extended return day, Kheola J. who heard the matter was informed that
the second and third respondent were not opposing the
matter and
abided by the decision of the Court.

The
second and third respondents apparently took no further part in the
proceedings thereafter and there was no appearance on their
behalf on
appeal.

The first
respondent however, vigorously opposed the confirmation of the rule
which was eventually discharged by Kheola J. after
lengthy argument.

The main
argument advanced by Mr. Pheko who appeared for the appellant was
that the decision of the University authorities to close
the
University was wrongful and unlawful and that for this

5

reason
paragraphs (c) and (d) of the rule and such parts of the other
sub-paragraphs which follow as a necessary consequence thereof
should
have been confirmed. His ancillary argument was that even if the
closure of the University was indeed lawful, the appellant
was
entitled to confirmation of some other parts of the rule. I shall
deal with both these submissions seriatim.

The
Closure of the University

It is
common cause that the University was in fact closed on the 4th of
April 1990, following upon a resolution of its Council adopted
on the
3rd of April 1990. The formal closure of the University on the 4th of
April 1990 was preceded by the following chronology
of events:-

15
March 1990

On this day the Vice Chancellor was informed by the appellant that
the students intended to demonstrate on 16 March and to "register
their dissatisfaction" in relation to a proposed new fee
structure-

2. 16 March 1990

6

The
Council of the University approved a new fee structure 3. 16 March
1990

The
student body boycotted their lectures, on this day.

The
students resolved that 19 March be set aside as a day for
petitioning the University in respect of the new fee structure.
4.
19 March 1990

The
students again boycotted their lectures.

The
Senate of the University met and resolved that students should
return to classes by 2.00 p.m., failing which they should leave
Roma
campus by 6.00 p.m. on that day.

A
petition was presented by the appellant on behalf of the students to
the secretary of the Council of the University.

7

The
petition protested against the proposed increases in fees in the
following academic year and authorised the Students Representative
Council ("SRC") to prepare a paper to the University
Council in June to enable the Council to reconsider its decision.

Following
on this, the Senate of the University passed a further resolution
condemning the boycott of classes and stating that
the Students
Union owed the Senate an apology and that the Senate expected
students to resume classes on Tuesday the 20th of
March.

At a
general meeting the students resolved to resume classes on 20 March
1990.

5. 21 March 1990

The
SRC of the students wrote to the Chairman of the University Council
communicating a resolution that a meeting of Council be
held within
ten days of the date of the letter, that

8

is, by 30
March, "to consider the demands in the petition". The
resolution further provided that "if the meeting
is not convened
within such a period or there is no indication (response) from the
Chairman of Council within such a time, the
SU will take a definite
course of action at the expiration of the stipulated period".

(A letter
from SRC President to the Registrar dated 27 March, reiterated that
"the deadline is Friday 30th for meeting of Council
as demanded
by the Student Union") 6.

23 March
1990

A
meeting of students was held at which it was resolved, inter alia,
"that Council should sit immediately" to consider
the
students' petition and "that until Council has met to consider
the petition students at the Roma campus should not attend
classes".

9

A
boycott of classes thereafter commenced, on the 23rd of March
notwithstanding the fact that the "deadline" of 30th
march
previously set had not yet expired. 7. 25 March 1990

The SRC
President and a delegation of students met with the acting Minister
of Education, who urged them to persuade students to
resume classes.
The students were told that the Government was considering the
matter.

The
students and the SRC President stated that they had no power to order
the students to resume classes.

8. 26
March 1990

There was
a report back to students at a general meeting of students on Roma
campus. The students resolved to continue the boycott.

9. 29
March 1990

10

The
letter written by the SRC President to the Council, in which it was
demanded that the petition be considered within ten days,
was
answered to the effect that the students' grievances would be
considered at the next Council meeting in June.

10. 2
April 1990

The
Senate of the University met and was informed by the SRC President
that the students intended to continue the boycott of
classes.

The
Vice Chancellor caused a notice to be placed on all notice boards
and delivered to the SRC offices stating that he would
be
addressing the students at 2.30 p.m. that day. He was to be joined
by other members of the Senate.

A
students meeting in fact took place at about that time but the Vice
Chancellor was not permitted to address the meeting. The
students
"maintained their stand" and decided to continue the
boycott.

11

The
Senate later met and upon receiving the Vice Chancellor's report of
what had transpired resolved to recommend to Council that
the
University be closed.

11. 3
April 1990

The
Council of the University considered the recommendation of the Senate
and resolved, inter alia, that unless students resumed
classes
unconditionally the next day, and the Students Union apologized in
writing for their disregard for the authority of the
Senate, Vice
Chancellor and the Council, the University" should close by 12
noon on Wednesday 4th April 1990". It also
resolved to consider
the petition on fees at the next scheduled Council meeting in June,
1990.

12. 4
April 1990

The Vice
Chancellor issued a notice addressed to all students. Deans,
Directors of Institutes and Heads of Departments, that the
University
was closed until further notice and that all academic activities
would cease with

12

immediate
effect. All students were required to leave the University
immediately.

Mr. Pheko
conceded, as he was obliged to, that the Students of the University
represented by the appellant had indeed been engaged
in a boycott of
classes for a considerable period, before the University authorities
decided to close the University and that the
Council of the
University had the statutory power in terms of Section 13 of the
National University Act No.13 of 1975 to close
the University. He
submitted, however, that before invoking such a power, the University
was obliged as a public body to give to
the students adversely
affected by such a decision notice of such intended action and an
opportunity of being heard as to why such
action should not be taken.
In his able and concise argument on behalf of the first respondent
Mr. Marcus rightly conceded the
correctness of these submissions but
he contended that the appellant could not on the facts establish that
there had been a breach
of the audi alteram partam rule.

I am of
the view that Mr. Marcus is correct in this approach. Before the
Senate meeting of the 2nd of April 1990, the Vice Chancellor
had
clearly sought to avert the impending crisis by addressing and
talking to the students. He was accompanied by other members
of the
Senate. He arrived at the hall where the

13

student
assembly had gathered to hold a meeting, and bold the Chairperson
that what he "intended to communicate to the students
might be
of assistance to them in whatever decisions they may arrive at".
The Chairperson retorted that the Vice-Chancellor
would have to
follow the procedure of calling the meeting through the S.R.C. The
Chairperson himself avers that the Vice Chancellor
asked him "to
persuade the students to stop their meeting to allow (the
Vice-Chancellor) to address them". The Chairperson
in fact
communicated that request to the students but they "maintained
their stand". In the result the Vice Chancellor
was simply not
allowed to talk to the students and he reported to the Senate that
this seemed to him to "constitute the last
blow to any efforts
at resolving the crisis".

The
appellant cannot in these circumstances properly complain that the
University authorities had simply taken a decision to close
the
University, without affording to the students an opportunity of being
heard in this regard. By 2.30 p.m. on the 2nd of May,
the possibility
that the University might have to be closed, (in the face of a
continuing and unremitting boycott of classes),
must have been
present in the minds of everyone in the University Community. The
opportunity to debate this crisis and to find
some solution which
would enable the University to function normally again, presented
itself when the Vice-chancellor sought

14

to talk
to the students. The students elected to deny that opportunity.

In his
tenacious address on behalf of the appellant, Mr. Pheko further
contended that what the first respondent had effectively
done was to
exclude the students from the University on the grounds of
"misconduct" and that such "punishment"
had to be
preceded by a proper disciplinary enquiry in terms of its domestic
statutes under Section 36(1) of the National University
Act No.10 of
1976, In my view, however, this is not a proper interpretation of
what the first respondent had resolved to do. It
never intended and
never purported to find any student or students guilty of
"misconduct" in terms of its domestic statutes.
It never
intended to impose any "sentence" or "punishment"
on any student by excluding, suspending or rusticating
such student
from the University. It was simply exercising its general statutory
power to close the University temporarily, in
circumstances where the
very rationale for the effective continuation of the University as a
University was being subverted by
a prolonged boycott of all classes
and a rupture of effective discipline and respect for the University
administration in the student
body. A properly disciplined student
body is perfectly entitled to be critical and even vigorously
critical of the University administration
and the

15

government
of the day and to manifest its disagreement with any of the policies
or actions of these bodies by organised protest.
It must, however,
maintain at all times that minimum discipline and respect for the
administration and staff of the University
as is essential for the
University to function effectively as a University and to discharge
its statutory duties and functions.

Mr. Pheko
also contended that even if the decision of the first respondent to
close the University was in the circumstances justified
in principle,
it was accompanied by other conditions which were unjustified and
which he submitted contaminated the decision to
close the University.
In order to appreciate this objection it is necessary to refer to the
material parts of the resolution of
the 3rd April 1990 which are in
the following terms:

3.2 that the Students Union apologies, in writing, to the Senate,
Vice Chancellor and the Council;

3.3 that in the event of the directives outlined in the paragraphs
above is not complied with.

16

the
University should close by 12.00 noon on Wednesday, 4th April 1990."
The first objection made by Counsel for the appellant
is to the word
"unconditionally" in paragraph 3.1. Why, Counsel argued,
can the students not have the right to return
to classes under
protestor to persist in their insistence that the proposed new fee
structure should be reviewed? I have no doubt
that the students
indeed have such rights. The word "unconditionally" was
never intended to detract from the right of
the students to continue
their criticism of the University administration, to manifest such
criticism by orderly protest and to
insist that the new fee structure
should be reviewed; provided, however, that the proper revision of
the new structure was not
imposed by them as a pre-condition before
they resumed class attendances. The obligation to resume classes had
to be "unconditional"
in that sense only.

Mr. Pheko
also attacked paragraph 3.2 of the resolution which required the
Student Union to apologize in writing to the University
Administration. He submitted that this was a condition more
appropriate to disciplinary proceedings and should not properly have
been combined with a direction requiring the students to resume
classes the next day.

17

I think
there are two answers to this objection. In the first place, even if
paragraph 3.2 was objectionale it was both nationally
and
grammatically severable from paragraph 3.1 and cannot on the evidence
be said to constitute a material reason for the resolution
of the 3rd
of April, (without which it would not have resolved to close the
University if the students did not resume classes on
the 4th of April
1990) (see Patel v Witbank Town Council 1931 TPD 284 at 290; Jabaar
and Another 1958(4) SA 107(T) at 114; WADE:
Administrative Law 6th
Edition page 442).

Secondly,
for the reasons I have previously mentioned, effective discipline and
a basic respect by students for the administration
and staff of the
University are essential for the University to be able to discharge
its functions and duties. The condition set
out in paragraph 3.2 of
the resolution of the University Council, could reasonably have been
considered necessary by it to create
the atmosphere conducive to the
discharge of such functions.

The
Ancillary Prayers Counsel for the appellant argued that even if the
first respondent had acted lawfully in causing the University
to be
closed, appellant was entitled to have certain other parts of the

18

rule
nisi confirmed by the High Court.

In the
first place it was contended that that part of prayer (a) which
sought to direct the first respondent to allow students access
to the
applicants offices on the campus was in any event justified. In my
view, however, the applicants activities and functions
on the campus
are related to the presence of students there. There was no evidence
on the record that if the University itself
was lawfully closed, the
applicant had any independent functions to perform on the campus or
that it had any right to do so.

Secondly
it was submitted that the appellant was entitled to the relief
claimed in paragraph (b) directing the first respondent
"to
allow students of the University to have possession of their personal
belongings". Whilst there is an allegation
in the founding
affidavit that access to the campus for this purpose was being denied
to some students on the 5th of April and
at some time on the morning
of the 6th of March, the Vice Chancellor says expressly that "on
the morning of the 6th April
when it became apparent that there were
some students outside campus who desired to enter the premises for

19

the
purpose of collecting their belongings, I arranged for the security
staff at the gate to admit such students and a number of
students
were so admitted to collect their belongings."

The Vice
Chancellor is supported by Chief Security Officer Mr. Mohapi who
confirms these instructions from the Vice-chancellor and
says that on
the 6th of October he spent "the whole day ferrying students in
the 1st respondent's mini-bus ..... to their
residences to collect
their belongings". Quite apart from the fact that the Court is
entitled to assume the correctness.of
the version of the respondent
where there is a conflict of fact in motion proceedings designed to
secure final relief (see Plascon-Evans
Paints v Van Riebeeck Paints
1984(3) SA 623(A)), the evidence does not establish that by the time
the appellants moved the application
in the Court a quo on the 6th of
April 1990 there was any legitimate basis for believing that any
student who sought to take "possession
of (his) personal
belongings" would be obstructed from doing so by the first
respondent.

Thirdly,
it was contended that prayer (g) should have been confirmed. This
prayer sought to "direct the first respondent to
allow the
students if they so wish, to write the examination at the end of the
academic year". There is nothing in the record
of the

20

proceedings,
however, which suggests that the first respondent had resolved to
deny to any student the opportunity to write his
"examination at
the end of the academic year", if such a student was otherwise
qualified and prepared to do so and had
properly requested such an
opportunity.

In the
result I order that the appeal be dismissed with costs. Dated at
Maseru this 26th day of July, 1991.